Golden Gate Bridge Highway and Transportation District (PERB 1669M)

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STATE OF CALIFORNIA
DECISION OF THE
PUBLIC EMPLOYMENT RELATIONS BOARD

INTERNATIONAL FEDERATION OF
PROFESSIONAL & TECHNICAL ENGINEERS,
LOCAL 21, AFL-CIO,

Charging Party, Case No. SF-CE-103-M

v. PERB Decision No. 1669-M

GOLDEN GATE BRIDGE HIGHWAY & July 28, 2004

TRANSPORTATION DISTRICT,

Respondent.

Appearances: Davis & Reno by Duane W. Reno, Attorney, for International Federation of
Professional & Technical Engineers, Local 21, AFL-CIO; Hanson, Bridgett, Marcus, Vlahos &
Rudy by Jerrold C. Schaefer, Attorney, for Golden Gate Bridge Highway & Transportation
District.

Before Duncan, Chairman; Whitehead and Neima, Members.

DECISION

NEIMA, Members: This case is before the Public Employment Relations Board
(Board) on appeal by the International Federation of Professional & Technical Engineers,
Local 21, AFL-CIO (Local 21) of a Board agent’s dismissal (attached) of its unfair practice
charge. The charge alleged that the Golden Gate Bridge Highway & Transportation District
(District) violated the Meyers-Milias-Brown Act (MMBA)' by unlawfully assisting employees
in the filing of a decertification petition and by violating its local rules.

The Board has reviewed the entire record in this matter, including the unfair practice

charge, the warning and dismissal letters, Local 21’s appeal and the District’s response. The

'The MMBA is codified at Government Code section 3500, et seq.

Board finds the warning and dismissal letters to be free
of
prejudicial error and adopts them
as
the decision
of
the Board itself.
ORDER
The unfair practice charge in Case No. SF-CE-103-M is hereby DISMISSED
WITHOUT LEAVE TO AMEND.
Chairman Duncan and Member Whitehead joined in this Decision.
2

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==============_(_,;,J--~'=====G=RA==Y=D=A
PUBLIC EMPLOYMENT RELATIONS BOARD
San Francisco Regional Office
1330 Broadway, Suite 1532
Oakland, CA 94612-2514
Telephone: (510) 622-1022
Fax: (510) 622-1027
August 4, 2003
Bill Fiore, Representative
IFPTE Local
21
1182 Market Street, Suite 425
San Francisco,
CA
94102
Re: 	International Federation
of
Professional & Technical Engineers, Local 21, AFL-CIO v.
Golden Gate Bridge Highway & Transportation District
Unfair Practice Charge No. SF-CE-103-M
DISMISSAL LETTER
Dear Mr. Fiore:
The above-referenced unfair practice charge was filed with the Public Employment Relations
Board (PERB or Board) on May 8, 2003. The International Federation
of
Professional &
Technical Engineers, Local 21, AFL-CIO alleges that the Golden Gate Bridge Highway &
Transportation District violated the Meyers-Milias-Brown Act (MMBA)1
by unlawfully
assisting employees, failing to offer represented employees the same layoff package as non-
represented employees and by violating a local rule.
I indicated to you in my attached letter dated July 17, 2003, that the above-referenced charge
did not state a prima facie case. You were advised that,
if
there were any factual inaccuracies
or additional facts which would correct the deficiencies explained in that letter, you should
amend the charge. You were further advised that, unless you amended the charge to state a
prima facie case or withdrew it prior to July 24, 2003, the charge would be dismissed.
On July 25, 2003, I received a one page letter from Local
21
's
attorney, Duane Reno. The
letter, not served on the Respondent, urges PERB to find that the employees who signed the
petition did not understand they were signing a decertification petition. However, as noted in
my July 17, 2003, letter, the employees' April 7, 2003, letter to the Respondent is entitled
"Petition for Decertification." Moreover, the District's Decertification procedures call for
"written proof that at least thirty percent (30%)
of
the employees in the unit do not desire to be
represented by the formerly recognized employee organization." The employees' March 17,
2003, petition states "We are all in agreement that our positions would be better served without
1 The MMBA is codified at Government Code section 3500 et seq. The text of the
MMBA and the Board's Regulations may be found on the Internet at www.perb.ca.gov.

SF-CE-103-M
August 4, 2003
Page2
union representation." Charging Party fails to demonstrate the District's acceptance
of
this
petition violates the MMBA or its own procedures.
As Charging Party has failed to file an amended charge, I am dismissing the charge based on
the facts and reasons contained herein, and in my July 17, 2003, letter.
Right to Appeal
Pursuant to PERB Regulations,2 you may obtain a review
of
this dismissal
of
the charge
byfiling an appeal to the Board itself within twenty (20) calendar days after service
of
this
dismissal. (Regulation 32635(a).) Any document filed with the Board must contain the case
name and number, and the original and five (5) copies
of
all documents must be provided to
the Board.
A document is considered "filed" when actually received before the close
of
business (5 p.m.)
on the last day set for filing or when mailed by certified or Express United States mail, as
shown
on
the postal receipt or postmark, or delivered to a common carrier promising overnight
delivery, as shown on the carrier's receipt, not later than the last day set for filing.
(Regulations 32135(a) and 32130.)
A document is also considered "filed" when received by facsimile transmission before the
close
of
business on the last day for filing together with a Facsimile Transmission Cover Sheet
which meets the requirements
of
Regulation 32135(d), provided the filing party also places the
original, together with the required number
of
copies and proof
of
service, in the U.S. mail.
(Regulations 32135(b), (c) and (d); see also Regulations 32090 and 32130.)
The Board's address is:
Public Employment Relations Board
Attention: Appeals Assistant
1031 18th Street
Sacramento, CA 95 814-417 4
FAX: (916) 327-7960
If
you file a timely appeal
of
the refusal to issue a complaint, any other party may file with the
Board an original and five copies
of
a statement in opposition within twenty (20) calendar days
following the date
of
service
of
the appeal. (Regulation 32635(b).)
Service
All documents authorized to be filed herein must also be "served" upon all parties to the
proceeding, and a "proof of service" must accompany each copy of a document served upon a
2 PERB's Regulations are codified at California Code of Regulations, title 8, section
31001 et seq.

SF-CE-103-M
August 4, 2003
Page 3
(
party or filed with the Board itself. (See Regulation 32140 for the required contents and a
sample form.) The document will be considered properly "served" when personally delivered
or deposited in the first-class mail, postage paid and properly addressed. A document filed by
facsimile transmission may be concurrently served via facsimile transmission on all parties to
the proceeding. (Regulation 32135(c).)
Extension of Time
A request for an extension of time, in which to file a document with the Board itself, must be
in writing and filed with the Board at the previously noted address. A request for an extension
must be filed at least three (3) calendar days before the expiration of the time required for
filing the document. The request must indicate good cause for and, if known, the position of
each other party regarding the extension, and shall be accompanied by proof of service of the
request upon each party. (Regulation 32132.)
Final Date
If no appeal is filed within the specified time limits, the dismissal will become final when the
time limits have expired.
Sincerely,
ROBERT THOMPSON
General Counsel
B 	_~_·	---'-/4	_____	2_--_	y
Kristin L. Rosi
Regional Attorney
Attachment
cc: Jerrold C. Schaefer

STATE OF CALIFORNIA	
GRAY	
Governor
PUBLIC EMPLOYMENT RELATIONS BOARD
San Francisco Regional Office
1330 Broadway, Suite 1532
Oakland, CA 94612-2514
Telephone: (510) 622-1022
Fax: (510) 622-1027
July 17, 2003
Bill Fiore, Representative
IFPTE Local
21
1182 Market Street, Suite 425
San Francisco, CA 94102
Re: 	International Federation
of
Professional & Technical Engineers, Local 21, AFL-CIO v.
Golden Gate Bridge Highway & Transportation District
Unfair Practice Charge No. SF-CE-103-M
WARNING LETTER
Dear Mr. Fiore:
The above-referenced unfair practice charge was filed with the Public Employment Relations
Board (PERB or Board) on May 8, 2003. The International Federation
of
Professional &
Technical Engineers, Local 21, AFL-CIO alleges that the Golden Gate Bridge Highway &
Transportation District violated the Meyers-Milias-Brown Act (MMBA)1
by
unlawfully
assisting employees, failing to offer represented employees the same layoff package as non-
represented employees and by violating a local rule.
Investigation
of
the charge revealed the following. Local 21 is the exclusive bargaining
representative
of
two
of
the District's 24 bargaining units; the Professional Engineers &
Technical Employee unit and the Allied Administrative Employee unit. The District and Local
21 are parties to two collective bargaining agreements, both
of
which expired on June 30,
2003. With regard to Layoff Rights, Article 21.3 states in relevant part:
21.3.1: Vacation, Severance Pay and Other Benefits
Each employee who is laid off shall receive two weeks severance
pay and any and all vacation pay, compensatory time accrual in
accordance with District policy, and floating holidays which have
been earned and not used through the date
of
layoff.
* 	* 	* 	* 	*
21.3.5: Recall Rights
1 The MMBA is codified at Government Code section 3500 et seq. The text of the
MMBA and the Board's Regulations may be found on the Internet at www.perb.ca.gov.

SF-CE-103-M
July 17, 2003
Page 2
(
For
one year following layoff, the employees
on
the layoff list
who had introductory and regular status shall be in a "recall
status."
....
The District's Employer-Employee Rules and Regulations provide the same layoff benefits for
non-represented employees.
With regard to the decertification
of
employee organizations, Section 3
of
the Rules and
Regulations provide as follows:
(1) A Petition for Decertification alleging that an employee
organization granted formal recognition is no longer the majority
representative
of
the employees in an appropriate unit may be
filed with the District at any time during the last three months
of
the term
of
the Memorandum
of
Understanding then in effect.
The Petition for Decertification may be filed
by
an employee, a
group
of
employees or their representatives, or an employee
organization. The petition, including all accompanying
documents, shall
be
verified, under oath,
by
the persons signing it
that its contents are true
...
The Petition for Decertification shall
contain the following information:
(i) the name, address and telephone number
of
the petitioner and
a designated representative authorized to receive notices or
requests for further information.
* 	* 	* 	* 	*
(iii) an allegation that the formerly recognized employee
organization no longer represents a majority
of
the employees in
the appropriate unit, and other material facts.
(iv) written proof that at least thirty percent (30%)
of
the
employees in the unit do not desire to be represented by the
formally recognized employee organization. Such written proof
shall be dated within six months
of
the date upon which the
petition is filed and shall be submitted for confirmation to the
District or to a mutually agreed upon disinterested party.
On February 28, 2003, the District's Board
of
Directors approved the layoff
of
31 positions.
These positions were filled by both administrative and managerial employees, some
of
which
were non-represented and others which were represented by various unions, including Local
21. The Board
of
Directors also approved an Enhanced Layoff Package for non-represented
employees. The enhanced package offered non-represented employees with additional
severance pay in exchange for the employee's waiver of recall rights. Finally, the Board noted

SF-CE-103-M
July 17, 2003
Page 3
that the enhanced package would serve as a guideline for District negotiations during the
required meet and confer process with Local
21
and other unions.
Also on February 28, 2003, in accordance with applicable MOUs, the District notified affected
employees and Local
21
of
their impending layoff. The District also notified Local
21
that it
was willing to meet and confer over the effect
of
the District's decision.
On March 17, 2003, the District received a decertification request from a group
of
Local
21
represented employees. The request provided signatures from more than 30%
of
the
represented employees, however the request was not filed within the 90-day period preceding
the expiration
of
the MOU.
On March 20, 2003, the District and Local
21
met to discuss the effects
of
the layoff. During
this meeting, Local
21
requested lifetime medical benefits for one laid
off
employee and
requested the District modify the selection pro.cess for three employees. The District rejected
the request for lifetime medical benefits but modified the selection process for those
employees. Additionally, the District offered the union the same enhanced layoff package as
that provided to non-represented employees. On March 27, 2003, the District rejected Local
21
's
request for additional COBRA benefits to its employees.
On April 7, 2003, District attorney Jerold Schaefer sent a letter to Payroll Coordinator Ana
Araya, indicating the deficiencies in the decertification request. On April 7, 2003, Ms. Araya
sent a letter to the District's General Manager. The letter stated in pertinent part:
On behalf
of
the members petitioning decertification from the
Allied Administrative Local
21
bargaining unit, please accept the
attached document and allow this group to re-file its petition.
* 	* 	* 	* 	*
We the undersigned respectfully request that our positions be
withdrawn from a represented status with Local 21. We are
making this request pursuant to Article 4.8 and Article 40
of
the
Memorandum
of
Understanding dated December 27, 2002. We
are all in agreement that our positions would be better served
without union representation. Please remove the following names
and positions from the Allied Administrative Employee Unit.
The letter is signed by fourteen employees.
On April 17, 2003, Local 21
's attorney Duane Reno telephoned the District's attorneys to
discuss the decertification petition. More specifically, Mr. Reno indicated the petition should
be denied as it was not signed under the penalty of perjury and did not contain the addresses of
employees who signed the petition. On April 21, 2003, Mr. Reno reiterated Local 21 's
position that the petition was defective as it was not signed under oath, does not contain the

SF-CE-103-M
July 17, 2003
Page 4
addresses and telephone numbers of the employees and does not contain an allegation that
Local 21 no longer represents a majority of the employees in the unit.
On April 25, 2003, the District sent a letter to Ms. Araya regarding the decertification petition.
The letter stated in relevant part:
The District is in receipt of a letter from counsel for Local 21
concerning your Petition for Decertification. Local 21 believes
that your Petition is not sufficient for the following reasons:
*It is not verified, under oath.
*It does not contain the names, addresses and telephone numbers
of the employees and a designated representative to receive
notice or requests for further information.
* It does not contain a statement that Local 21 no longer
represents a majority of the employees in the Unit.
In light of this letter, I am sending to you a copy of section
B(l)(I)-(iv) from the District Rules that apply to your Petition.
You may correct the Union's concerns by re-filing your Petition
with the General Manager and adding the points raised above.
On April 30, 2003, Ms. Araya sent a revised Petition for Decertification. The revised Petition
states in pertinent part:
Under oath, I, Ana M. Araya verify that the following
information regarding the majority members of Local 21 is true
and correct.
* 	* 	* 	* 	*
Local 21 no longer represents a majority of members in this Unit,
District Rules Section B(l)(v). Please refer to the original
petition which was signed by half of the represented positions
under the Local 21 bargaining unit.
On May 2, 2003, Mr. Reno sent another letter to the District regarding the Petition for
Decertification. In this letter, Mr. Reno stated that it was not clear "the employees who signed
the original document believed they were requesting a decertification election or were instead
merely requesting a modification of Local 21 's unit that would cause them to become
unrepresented."

SF-CE-103-M
July 17, 2003
Page 5
On
May
17, 2003, the District informed all parties involved that it would be contacting the
SMCS to schedule a secret ballot election.
Based on
the above stated facts, the charge as presently written fails to state a prima facie
violation
of
the MMBA, for the reasons provided below.
I. Bad Faith Bargaining
The charge alleges that the employer violated Government Code section 3505 and PERB
Regulation 32603(c)2
by
engaging in bad faith
or
"surface" bargaining. Bargaining
in
good
faith is a "subjective attitude and requires a genuine desire to reach agreement." (Placentia Fire
Fighters v. City
of
Placentia (1976) 57 Cal.App.3d 9, 25 [92 LRRM 3373].) PERB has held it
is the essence
of
surface bargaining that a party goes through the motions
of
negotiations,
but
in
fact is weaving otherwise unobjectionable conduct into an entangling fabric to delay
or
prevent agreement. (Muroc Unified School District (1978) PERB Decision No. 80.)3 Where
there is an accusation
of
surface bargaining, PERB will resolve the question
of
good faith
by
analyzing the totality
of
the accused party's conduct. The Board weighs the facts to determine
whether the conduct at issue "indicates an intent to subvert the negotiating process or is merely
a legitimate position adamantly maintained." (Oakland Unified School District (1982) PERB
Decision No. 275; Placentia Fire Fighters, supra.)
The indicia
of
surface bargaining are many. Entering negotiations with a "take-it-or-leave-it"
attitude evidences a failure
of
the duty to bargain because it amounts to merely going through
the motions
of
negotiations. (General Electric Co. (1964) 150 NLRB 192, 194 [57 LRRM1491], enf. 418 F.2d 736 [72 LRRM 2530].) Recalcitrance in the scheduling
of
meetings is
evidence
of
manipulation to delay and obstruct a timely agreement. (Oakland Unified School
District (1983) PERB Decision No. 326.) Dilatory and evasive tactics including canceling
meetings or failing to prepare for meetings is evidence
of
bad faith. (Oakland Unified School
District, supra, PERB Decision No. 326.) Conditioning agreement on economic matters upon
prior agreement on non-economic subjects is evidence
of
an unwillingness to engage in a give-
and-take. (State
of
California (Department
of
Personnel Administration) (1998) PERB
Decision No. 1249-S.)
Other factors that have been held to be indicia
of
surface bargaining include: negotiator's lack
of
authority which delays and thwarts the bargaining process (Stockton Unified School District
(1980) PERB Decision No. 143.); insistence on ground rules before negotiating substantive
issues (San Ysidro School District (1980) PERB Decision No. 134.); and reneging on tentative
agreements the parties already have made (Charter Oak Unified School District (1991) PERB
2 PERB Regulations are codified at California Code
of
Regulations, title 8, section
31001 et seq.
3 When interpreting the MMBA, it is appropriate to take guidance from cases
interpreting the National Labor Relations Act and California labor relations statutes with
parallel provisions. (Firefighters Union v. City of Vallejo (1974) 12 Cal.3d 608.)

SF-CE-103-M
July 17, 2003
Page6
(
Decision No. 873; Stockton Unified School District, supra, PERB Decision No. 143;
Placerville Union School District (1978) PERB Decision No. 69.).
It is clear, however, that while a party may not merely go through the motions, it may lawfully
maintain an adamant position on any issue. Adamant insistence on a bargaining position is not
necessarily refusal to bargain in good faith. (Placentia Fire Fighters, supra; Oakland Unified
School District, supra, PERB Decision No. 275.) "The obligation
of
the employer to bargain in
good faith does not require the yielding
of
positions fairly maintained." (NLRB v. Herman
Sausage Co. (5th Cir. 1960) 275 F.2d 229 [45 LRRM 2829, 2830].)
Herein, facts provided demonstrate the District met with Local
21
to discuss the effects
of
the
layoff. Moreover, the District offered an Enhanced Severance Package which was not
provided for under the parties' MOU. The District's failure to approve additional COBRA
benefits for Local
21
members does not constitute bad faith bargaining. The District met with
Local
21
and discussed the union's concerns, agreeing to some modifications and rejecting
others. As such, this allegation fails to state a prima facie case.
II. Unlawful Assistance
To state a prima facie violation
ofMMBA
sections 3502 and 3503 and PERB Regulation
32603(d), the charging party must allege facts which demonstrate that the employer's conduct
tends to interfere with the internal activities
of
an employee organization or tends to influence
the choice between employee organizations. (Santa Monica Community College District
(1979) PERB Decision No. 103, (Santa Monica CCD); Redwoods Community College District
(1987) PERB Decision No. 650, (Redwoods CCD).)4 Proof that an employer intended to
unlawfully dominate, assist or influence employees' free choice is not required. Nor is it
necessary to prove that employees actually changed membership as a result
of
the employer's
act. (Santa Monica CCD; Redwoods CCD.) The threshold test is "whether the employer's
conduct tends to influence [free] choice or provide stimulus in one direction or the other."
(Santa Monica CCD, p. 22.)
Herein, the alleged unlawful conduct arises from the District's letter informing the employees'
of
the deficiencies in their Petition for Decertification and providing them with the Rules and
Regulations governing such petitions. It is unclear how the District's conduct tends to
influence the employees' conduct, given the fact that these employees had already begun the
decertification process on their own. Moreover, merely providing the petitioners with the rules
and regulations is hardly unlawful assistance. As such, this allegation fails to state a prima
facie case.
4 When interpreting the MMBA, it is appropriate to take guidance from cases
interpreting the National Labor Relations Act and California labor relations statutes with
parallel provisions. (Firefighters Union v. City of Vallejo (1974) 12 Cal.3d 608.)

SF-CE-103-M
July 17, 2003
Page7
(
III. Violation
of
Local Rule
PERB Regulation 32603(g) prohibits an employer from violating a local rule adopted pursuant
to Government Code section 3507. Charging Party contends the District violated Section 3
of
the Rules and Regulations
by
ordering a secret ballot election. It is unclear, however, how this
rule has been violated. The revised Petition for Decertification provides, under oath, that the
undersigned employees wish to decertify Local
21
as
their representative. The Petition was
signed by more than 50%
of
the bargaining unit and was filed within 90 days
of
the expiration
of
the agreement. Additionally, the name, address and telephone numbers
of
all signatories is
provided, a detail not required by Section 3. As the District has correctly applied the local
rule, this allegation fails
to
state a prima facie case.
For these reasons the charge, as presently written, does not state a prima facie case.	
If
there
are any factual inaccuracies in this letter or additional facts that would correct the deficiencies
explained above, please amend the charge. The amended charge should be prepared on a
standard PERB unfair practice charge form, clearly labeled First Amended Charge, contain all
the facts and allegations you wish to make, and be signed under penalty
of
perjury
by
the
charging party. The amended charge must have the case number written on the top right hand
corner
of
the charge form. The amended charge must be served on the respondent's
representative and the original proof
of
service must be filed with PERB.
If
I do not receive an
amended charge or withdrawal from you before July 24, 2003, I shall dismiss your charge.	
If
you have any questions, please call me at the above telephone number.
Sincerely,
Kristin L. Rosi
Regional Attorney
KLR